The Rajasthan High Court has affirmed that prior criminal history does not automatically disqualify an accused from bail when the offence is triable by a Magistrate and prolonged judicial custody is likely. The judgment underscores that bail is the rule, not the exception, even for repeat offenders, provided conditions are imposed to ensure compliance.
Background & Facts
The Dispute
The petitioner, Moti Lal alias Sonu, son of Shri Kalu, aged about 28 years, resident of Aameto Ka Bas, Kelwada, District Rajsamand, was arrested in connection with FIR No. 135/2026 lodged at Surajpole Police Station, Udaipur. The FIR was registered on 15.04.2026 under Section 309(6) of the Bharatiya Nyaya Sanhita (BNS), 2023. The petitioner has been in judicial custody since the date of arrest.
Key Facts
- The offence under Section 309(6) of BNS, 2023 is punishable with imprisonment up to three years and is triable by a Magistrate.
- The petitioner has 16 prior criminal cases on record, as noted by the Public Prosecutor.
- No chargesheet has been filed as of the date of the bail order.
- The petitioner is currently lodged in Central Jail, Udaipur.
Procedural History
- 15.04.2026: FIR No. 135/2026 lodged at Surajpole Police Station, Udaipur.
- 15.04.2026: Petitioner arrested and placed in judicial custody.
- 15.07.2026: Bail application filed under Section 483 of BNSS (equivalent to old Section 439 CrPC).
- 15.07.2026: Hearing conducted before the Hon’ble Mr. Justice Sunil Beniwal.
- 15.07.2026: Order passed granting bail.
Relief Sought
The petitioner sought release on bail on the grounds that:
- The offence is non-serious and triable by a Magistrate.
- He has been in custody since 15.04.2026.
- The trial is likely to be protracted.
- He has been falsely implicated.
Positions Before This Court
The petitioner’s counsel argued that prolonged detention without trial violates the right to liberty under Article 21 and that bail should be granted as the offence is bailable in nature. The Public Prosecutor opposed bail, citing the petitioner’s extensive criminal antecedents as a risk to public order and likelihood of tampering with evidence.
The Legal Issue
The central question was whether an accused with multiple prior criminal cases is entitled to bail for an offence triable by a Magistrate under the Bharatiya Nyaya Sanhita, 2023, where the trial is likely to be prolonged and no chargesheet has been filed.
Arguments Presented
For the Petitioner
Learned counsel submitted that Section 309(6) of BNS, 2023 is a non-bailable but magistrate-triable offence, and the petitioner’s continued detention without trial for an indefinite period would amount to a violation of his fundamental right to liberty. He relied on the principle that bail is the rule and jail the exception, particularly where the offence is not of a grave nature. He emphasized that the petitioner has been in custody for over two months and the trial is expected to take considerable time.
For the Respondent
The Public Prosecutor contended that the petitioner’s record of 16 prior criminal cases indicates a pattern of criminal conduct and poses a risk of reoffending or influencing witnesses. He argued that granting bail in such circumstances would undermine public confidence in the justice system and set a dangerous precedent.
The Court's Analysis
The Court examined the nature of the offence under Section 309(6) of BNS, 2023, noting that it is triable by a Magistrate and carries a maximum sentence of three years. The Court observed that the offence does not fall within the category of heinous or grave crimes warranting denial of bail on the basis of antecedents alone.
"No fruitful purpose would be served by keeping the petitioner behind the bars for an indefinite period as the trial will take sufficiently long time."
The Court held that while prior criminal history is a relevant factor, it cannot be the sole or decisive ground for denying bail, particularly when the offence is not of a serious nature and the accused has been in custody for a significant period without trial. The Court distinguished this case from those involving murder, terrorism, or sexual offences, where public interest and gravity of crime override the right to liberty.
The Court further emphasized that bail orders are not adjudications on merits and that the trial court must remain free to evaluate evidence independently. The Court also noted that the absence of a chargesheet indicated that the investigation was still in progress, further justifying the need to avoid prolonged pre-trial detention.
The Verdict
The bail application was allowed. The petitioner, Moti Lal alias Sonu, shall be released on bail upon executing a personal bond of Rs. 50,000 with two solvent sureties of Rs. 25,000 each. Additionally, the petitioner is directed to report personally to the Surajpole Police Station on the first day of every month until the conclusion of the trial. Failure to comply will render the bail liable for cancellation, and the Public Prosecutor may apply for its revocation. The Court clarified that its observations are strictly limited to the bail stage and shall not prejudice the trial court’s evaluation of the case.
What This Means For Similar Cases
Prior Criminal Record Does Not Bar Bail for Non-Grave Offences
- Practitioners may now argue that a history of prior cases cannot be the sole basis for denying bail in magistrate-triable offences under BNS, 2023.
- Courts must weigh the nature of the current offence, duration of custody, and likelihood of trial delay before denying bail.
Monthly Police Reporting as a Tailored Bail Condition
- Courts may impose periodic reporting conditions as a reasonable alternative to outright denial of bail for repeat offenders.
- Such conditions balance liberty with public safety and reduce the risk of reoffending or witness tampering.
Bail Is Not a Merits Determination
- This judgment reinforces that bail orders are procedural, not substantive.
- Advocates must ensure trial courts are not influenced by bail observations, and should file appropriate applications to preserve the record.
When Delay Justifies Release
- If an accused has been in custody for over 60 days without a chargesheet and the offence is not grave, bail becomes a strong legal entitlement.
- This principle applies equally to offences under BNS, 2023, IPC, and other statutes.
The Burden of Justifying Denial Shifts to the State
- The State must now articulate specific, concrete risks - not generalizations - to justify denial of bail in non-serious cases.
- Mere reference to prior cases without evidence of threat to investigation or public order is insufficient.
